Citation NR: 9636666
Decision Date: 12/26/96 Archive Date: 01/02/97
DOCKET NO. 92-18 327 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for a lumbar spine
disorder.
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Gregory W. Fortsch, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1962 to June
1965.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from rating actions by the Los Angeles,
California, Regional Office (RO) of the Department of
Veterans Affairs (VA). This case was last before the
undersigned member of the Board in February 1993, at which
time it was remanded for further development. Specifically,
the Board asked the RO to obtain medical documentation
missing from the claims file, and to schedule a VA orthopedic
examination of the veteran in order to determine the etiology
of the veteran’s spinal disorder(s).
In August 1992, a hearing was held at the RO before the
undersigned member of the Board. In June 1996, a hearing was
held at the RO before a hearing officer. Transcripts of
these hearings are of record.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the current problems he has with
his lower back are related to the low back problems noted in
his service medical records.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that
the veteran has failed to submit a well-grounded claim for
service connection for a lumbar spine disorder.
FINDING OF FACT
The claim for service connection for a lumbar spine disorder
is not plausible.
CONCLUSION OF LAW
The veteran’s claim for service connection for a lumbar spine
disorder is not well-grounded. 38 U.S.C.A. § 5107(a) (West
1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under the law, service connection can be granted for any
disability resulting from disease or injury incurred in or
aggravated during active military service in wartime. 38
U.S.C.A. § 1110 (West 1991). In a claim to establish service
connection, a claimant is always obliged to present evidence
of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991).
A well-grounded claim is simply a plausible one, which means
that it is either meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990).
It has also been determined that a well-grounded claim
requires medical evidence of a current disability, lay or
medical evidence of a disease or injury in service, and
medical evidence of a link between the current disability and
the in-service injury or disease. Caluza v. Brown, 7
Vet.App. 498 (1995). If a claim is not well-grounded, then
no duty to assist the claimant attaches to the VA under 38
U.S.C.A. § 5107(a).
The veteran’s service medical records show complaints of and
treatment for back problems on several occasions. In January
1963, the attending physician noted that the veteran’s back
had been injured one month earlier. A February 1963 entry
noted that the veteran had pain in his back after falling on
the ice on two occasions; a back board and aspirin were
prescribed. In February 1964, bilateral low back spasms were
noted to have occurred that morning. No neurologic symptoms
were noted by the examiner. In December 1964, the veteran
complained of back pain after lifting. Physical examination
revealed that toe touches and leg raises were within normal
limits bilaterally. The veteran noted back trouble on his
June 1965 report of medical history, but a separation
examination of the same date showed a normal clinical
evaluation of the spine.
Records compiled after discharge show that the veteran
underwent a myelogram in October 1990. AP and lateral views
of the lumbar region showed a decrease in the AP dimension of
the bony canal and a small thecal sac. A mild to moderate
degree of congenital spinal stenosis was noted in the lumbar
region as well as a small extradural defect on the ventral
aspect of the thecal sac at L5-S1. The defect was described
as a disc bulge and a similar small defect was noted at L3-4.
In August 1991, the veteran complained of significant low
back problems, but the examining physician at the time, H.
Segal, M.D., did not render a diagnosis with respect to the
disability.
In August 1992, the veteran described the in-service
accidents that caused his back problems. See Hearing
Testimony (T), pp. 2-3. He generally stated that the lack of
concern over initially treating his injury in the service was
probably due his superior officer’s belief that the veteran
was faking his injury in order to get out of the military.
Id. at 3. The veteran explained that he spent 10 to 15 years
as a self-employed fisherman after discharge from the
service. Id. at 8. The veteran testified that he injured
his cervical spine in 1988 while working at the Long Beach
(CA) naval yard. Id. at 4. He added that he received
worker’s compensation for his cervical injury, but that
magnetic resonance imaging had never been done for his lower
back. Id. at 9. The veteran also testified that he had
spent a considerable amount of time each night getting his
back in position so as to be prepared to go to sleep for 3 or
4 hours. Id. at 11.
In June 1994, the veteran underwent the VA examination
ordered by the Board in its February 1993 remand. The
examiner stated that there was no evidence of atrophy,
fasciculation or limitation of motion of the lumbar spine,
and that x-rays of the lumbosacral and cervical spine were to
be taken. The examiner concluded that there was no evidence
compatible with chronic radiculopathy or spinal cord injury.
The examiner failed to provide an opinion on the etiological
relationship of the veteran’s spinal disorder. X-ray films
taken after the examination in June 1994 showed moderate
spondylosis of the lumbar spine involving T12-L1 and L5, but
no obvious central canal stenosis.
The veteran was again examined in September 1994. X-ray
studies revealed a transitional vertebra at the lumbosacral
junction with mild adjacent degenerative change and some
probable narrowing of the interspace just above the
transitional segment. Atlanto-axial articulations were
grossly symmetrical and showed no evidence of gross bone
destruction. The examiner stated that symptoms were
certainly suggestive of degenerative disk disease of the
cervical and lumbar spine, but concluded that plane x-rays
and physical examination were entirely within normal limits.
In June 1996, the veteran testified again about the accidents
in service that caused injuries to his lower back. T at 1-5.
The veteran also testified that he self-medicated his back
problems after service with small doses of morphine. Id. at
7. He explained that he spoke to a retired chiropractor in
the 1970s about his back problems, and the chiropractor
suggested some exercises. Id. He added that he injured his
cervical spine in a 1988 shipyard accident. Id. at 8. He
also stated that he injured his back about 1 and a half years
prior to the hearing while lifting an object weighing 5 to 8
pounds. Id. at 8, 9. He stated that he had to crawl around
on his hands and knees for several days after the latter
accident. Id. The veteran testified that his back sometimes
left him unable to function for 2 to 5 days, but that he was
surprisingly able to do gardening. Id. at 13. He added that
1990 myelogram records showed a lower back disability even
though a VA examiner in 1994 was unable to find any
disability. Id. at 16.
Based on a review of the above evidence, the Board concludes
that the veteran’s claim for a lumbar spine disorder is not
well-grounded. For a claim to be well-grounded, there must
be a showing of an in-service injury, a current disability,
and medical evidence of a nexus between the two. See Caluza.
Medical records clearly show that the veteran currently has a
lumbar spine disability. For instance, a mild to moderate
degree of congenital spinal stenosis was shown in October
1990, and June and September 1994 x-rays showed degenerative
change and spondylosis in the lumbar region. With regard to
an in-service injury, the medical records show some
complaints of and treatments for a back injury. The veteran
attests to this injury in his statements and testimony at two
hearings. While the Board does not take issue with the fact
that an injury occurred in service, there is a question of
the nature of that injury. There is no showing that the
veteran sustained a chronic lumbar spine disability in
service. The veteran’s June 1965 separation examination
showed no objective clinical evidence of same, and the
veteran’s complaints of back trouble in his June 1965 report
of medical history are no indication of the nature of the
injury. However, the third element required to make a claim
well-grounded is still missing. There is no medical evidence
of a link between the veteran’s current problems and his in-
service injury. There is also no evidence of continuity of
lumbar symptomatology following service. Although the
veteran was discharged from the service in June 1965, there
are no medical treatment records until 1990, twenty-five
years after service. While it is clear that the veteran
genuinely and sincerely believes that his current lumbar
problems are related to service, as is shown by his numerous
letters and testimony, he is not a licensed medical
practitioner, and is not, therefore, competent to offer
opinions on questions of medical causation or diagnosis.
Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v.
Derwinski, 2 Vet.App. 492 (1992).
Although the VA does not have a statutory duty to assist a
claimant in developing facts pertinent to his claim where
claims are deemed to be not well-grounded, the VA may be
obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of
evidence needed to complete his application. This obligation
depends upon the particular facts of the case and the extent
to which the Secretary of the VA has advised the claimant of
the evidence necessary to be submitted with a VA benefits
claim. Robinette v. Brown, 8 Vet.App. 69 (1995).
In this case, the RO fulfilled its obligation under section
5103(a) in the February 1992 Statement of the Case and
subsequent supplemental Statements of the Case in which the
veteran was informed of the reasons for the denial of his
claim. Furthermore, by this decision, the Board is informing
the veteran of the evidence which is lacking and that is
necessary to make his claim well-grounded. In light of the
fact that the veteran has failed to provide medical evidence
of a nexus between current lumbar problems and an in-service
injury or evidence of continuity of symptomatology, the claim
for service connection for a lumbar spinal disorder must be
denied.
ORDER
The appeal for service connection for a lumbar spine disorder
is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -